The South African government has long been determined to follow the example of countries like Australia and the United Kingdom by introducing tobacco plain packaging legislation. This has been controversial from a trade mark point of view, because trade mark owners argue that a law that makes it impossible for certain trade marks to be used is akin to expropriation of property.
The argument goes like this: because in South Africa a trade mark registration can be cancelled after five consecutive years of non-use, any measures that make it impossible for a trade mark owner to use its registered trade mark infringe the constitutional protection given to property, particularly if there is no compensation involved. The counter- argument is that this is not the case, because the law provides that non-use will not lead to cancellation if there are ‘special circumstances’.
The South African authorities have watched developments in other countries very closely. In Australia and the United Kingdom, where trade mark law is similar to that in South Africa, plain packaging legislation has been held to be lawful. It seems that seven countries have already brought in plain packaging laws – Australia, Hungary, Ireland, France, New Zealand, Norway and the United Kingdom. Six others – Burkina Faso, Canada, Georgia, Romania, Slovenia and Thailand – have passed laws that still need to be implemented.
The South African government has now published legislation called the Draft Control of Tobacco Products and Electronic Delivery Systems Bill 2018, which makes it clear that plain packaging will be a requirement. Section 4, which is headed Standardised packaging and labelling of tobacco products, reveals that the thinking is that tobacco products will have a uniform plain colour and texture and the brand name will be allowed in a standard colour and typeface, but no other colours or logos will be permitted.
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